Opinion
NNHCV136043204
03-30-2016
Anne Campbell v. City of New Haven
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Jon M. Alander, Judge of the Superior Court.
The plaintiff has brought this action against the defendant claiming damages as a result of a slip and fall on ice on a walkway leading from the parking area to the Columbus Family Academy, a school which the plaintiff alleges is owned by the defendant. The defendant has moved to dismiss the action for lack of subject matter jurisdiction. Specifically, the defendant asserts that jurisdiction is lacking on the grounds that (1) the plaintiff has failed to allege a violation of General Statutes § 13a-149, the municipal highway defect statute, which the defendant asserts is the exclusive remedy for the plaintiff's claim, and (2) the plaintiff has sued the wrong party as the defendant did not have the duty to maintain the walkway upon which the plaintiff fell.
Section 13a-149 provides: " Any person injured in person or property by means of a defective road or bridge may recover damages from the party bound to keep it in repair. No action for any such injury sustained on or after October 1, 1982, shall be brought except within two years from the date of such injury. No action for any such injury shall be maintained against any town, city, corporation or borough, unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town, or to the clerk of such city or borough, or to the secretary or treasurer of such corporation. If the injury has been caused by a structure legally placed on such road by a railroad company, it, and not the party bound to keep the road in repair, shall be liable therefor. No notice given under the provisions of this section shall be held invalid or insufficient by reason of an inaccuracy in describing the injury or in stating the time, place or cause of its occurrence, if it appears that there was no intention to mislead or that such town, city, corporation or borough was not in fact misled thereby."
The plaintiff in her complaint expressly states that she is asserting a cause of action against the defendant for the negligence of its employees pursuant to General Statutes § 7-465. The defendant argues that the plaintiff's claim is one involving a municipal highway defect which must be brought pursuant to General Statutes § 13a-149 because it contends that a walkway from a public parking lot to a public school constitutes such a defect. The defendant further asserts that the New Haven Board of Education, not the city of New Haven, had possession and control of the school and had the responsibility for snow removal and sanding the walkway where the fall occurred. The defendant asserts that the plaintiff's failure to identify § 13a-149 as the basis for her cause of action and her failure to name the New Haven Board of Education as a defendant deprives this court of subject matter jurisdiction. I do not agree that the claimed shortcomings of the plaintiff's complaint result in the loss of subject matter jurisdiction.
Section 7-465 provides in pertinent part: " (a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality . . . all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty . . . Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the employee may be represented by the same attorney. As used in this section, " employee" includes (1) a member of a town board of education and any teacher, including a student teacher doing practice teaching under the direction of such a teacher, or other person employed by such board, and (2) a member of the local emergency planning committee from such municipality appointed pursuant to section 22a-601. Nothing in this section shall be construed to abrogate the right of any person, board or commission which may accrue under section 10-235."
The defendant submitted an affidavit from William Clark, the chief operating officer for the New Haven Board of Education, attesting to these facts.
" A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Bacon Construction Co. v. Dept. of Public Works, 294 Conn. 695, 706, 987 A.2d 348 (2010). " Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it . . . Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong . . . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it." (Citations omitted.) Doe v. Roe, 246 Conn. 652, 661, 717 A.2d 706 (1998).
The defendant contends that the failure of the defendant to specifically identify section 13a-149 as the basis for her claim deprives this court of subject matter jurisdiction. The defendant has provided no authority for its position. Practice Book § 10-3(a) does provide that " [w]hen any claim made in a complaint, . . . is grounded on a statute, the statute shall be specifically identified by its number." This rule has been construed as directory rather mandatory. Criscuolo v. Mauro Motors, Inc., 58 Conn.App. 537, 545, 754 A.2d 810 (2000). " As long as the defendant is sufficiently apprised of the nature of the action, the directive of Practice Book § 10-3(a) will not bar recovery." (Citations omitted.) Spears v. Garcia, 66 Conn.App. 669, 676, 785 A.2d 1181 (2001), aff'd, 263 Conn. 22, 818 A.2d 37 (2003). The plaintiff in this case did not cite § 13a-149 because she is not relying on that statute to pursue her claim. In any event, the failure to cite a statute in one's complaint does not affect the subject matter jurisdiction of the court.
As noted previously, the plaintiff cited General Statutes § 7-465 as the basis for her cause of action. The plaintiff has since filed a request to amend her complaint to add a cause of action pursuant to General Statutes § 52-557n.
The defendant has not based its motion to dismiss on a claim of governmental immunity. Unlike sovereign immunity, the doctrine of governmental immunity does not implicate subject matter jurisdiction. Vejseli v. Pasha, 282 Conn. 561, 572, 923 A.2d 688 (2007).
Similarly, the plaintiff's failure to name the New Haven Board of Education as a defendant does not deprive this court of subject matter jurisdiction. It is true as the defendant asserts that to maintain a cause of action pursuant to § 13a-149 " the party whom the plaintiff is suing must be the party bound to keep the location where the injury was sustained in repair." (Internal quotation marks and citations omitted.) Bartlett v. Metropolitan District Commission, 125 Conn.App. 149, 157-58, 7 A.3d 414 (2010). The failure to name that party as a defendant however does not implicate the court's subject matter jurisdiction. Bagg v. Town of Thompson, 114 Conn.App. 30, 41 (2009). In Bagg, a pedestrian who fell from a stairway on the side of a highway brought an action against the town under § 13a-149. The town moved to dismiss for lack of subject matter jurisdiction on the grounds that the plaintiff could not demonstrate the two elements of a cause of action under § 13a-149: (1) that she sustained her injuries on a defective road or bridge; and (2) that the defendant was the party bound to keep the road or bridge in repair. The trial court agreed and granted the motion to dismiss. The Appellate Court reversed. The court concluded that subject matter jurisdiction is not implicated by the alleged failure to satisfy the elements of a cause of action under the municipal highway defect statute. Id., 40. Bagg v. Town of Thompson controls this issue. The failure to name the proper party with the responsibility to maintain the walkway may ultimately doom the plaintiff's claim. It does not affect the competence of the court to entertain the action.
The court in Bagg v. Town of Thompson, supra, did recognize that the failure to provide the notice required by § 13a-149 deprives the court of subject matter jurisdiction because such notice is a condition precedent to bringing the action. Id., 41. See also Ferreira v. Pringle, 255 Conn. 330, 766 A.2d 400 (2001). The plaintiff here has made no such claim.
For the reasons stated, the defendant's motion to dismiss the plaintiff's complaint is hereby denied.